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Excerpted From: Kevin D. Sawyer, Jailhouse Lawyering from the Beginning, 68 UCLA Law Review Discourse 98 (2021) (83 Footnotes) (Full Document)
My first act of resistance was doing legal work in county jail. Following my conviction, I made my first public political statement about the legal system on my way to prison. I set forth my political views at my sentencing hearing. The transcript of that speech is forty pages long. “I was in trouble when was I was born Black.” I quoted the words of my Uncle Jimmy Lee Davis, made more than twenty years earlier when I was a boy. I continued with my own words: “I was born a suspect All Black men are born suspects.” Sheri Lynn Johnson made a similar observation:
The very bottom of the American well has to be inhabited by the Black defendant; the suspicion of their wrongdoing, a suspicion that both exacerbates and confirms racial stereotypes, pushes them to the nadir of respect, privilege, and possibility.
Recalcitrant in speech, defiant in heart, and facing a life sentence, I refused to beg the court for mercy I was not about to receive. I would not bend, bow, genuflect, or crawl. I was determined to fight, if only with words. Then I quoted George Jackson from his book Soledad Brother:
Black men born in the U.S. and fortunate enough to live past the age of eighteen are conditioned to accept the inevitability of prison. For most of us, it simply looms as the next phase in a sequence of humiliations. Being born a slave in a captive society and never experiencing any objective basis for expectation had the effect of preparing me for the progressively traumatic misfortunes that lead so many black men to the prison gate. I was prepared for prison. It required only minor psychic adjustments.
Toward the end of my speech I quoted Ernesto “Che” Guevara, author of Guerilla Warfare: “Forever onward to victory.” I'd already read a makeshift legal manual in jail titled Gorilla Law. This for me was a new beginning. I titled my first unpublished essay written in prison “The Nascent Zero Hour.”
My final statement at my sentencing was: “For the rest of my life, I'll always spell 'Contra Costa County’ not with three C's, but with three K's.”
Arrest warrant, search warrant, and police report are narratives created and controlled by law enforcement The formal filing of charges against the accused, arraignment, advice from counsel (private or public), and the inescapable question “Do you wish to enter a plea?” are routine tasks carried out by officers of the court Months, maybe years later, evidence, discovery, pretrial motions, hearings, memorandums of points and authorities, Latin phrases, voir dire, and jury instructions become the arcane language the accused-turned-defendant will become accustomed to during the course of a full-blown criminal trial. If they are unfortunate and the jury or judge returns a guilty verdict, what follows is a probation report, victim impact statements, clerk minute orders, trial transcripts, abstract of judgment, notice of appeal, and other documents. But finally, it is the trial judge who expresses an opinion or makes a statement, if any, and pronounces a defendant's fate through a sentence of imprisonment They are the final words from the arbiter of the entire process.
Any first-year law student should be able to describe the above in intricate detail. The aspiring neophyte of law understands each voice laid bare, with one remarkable exception: the defendant's. They rarely speak on the record unless they testify in their defense or make a statement at sentencing. If they exercise their rights under the Fifth Amendment to the U.S. Constitution, or the First Amendment, as reticence is a form of free speech, the benefits there and under Miranda v. Arizona will follow them to the iron gates of prison.
The defendant-turned-prisoner in many instances does not speak because the humiliating process of trial and incarceration has taught them to be the obedient pariah that officials have shaped through law and indoctrination. As Jack Henry Abbott opined:
I have never accepted that I did this to myself. I have never been successfully indoctrinated with that belief. That is the only reason I have been in prison this long.
[. . .]
A prisoner is taught that what is required of him is to never resist, never contradict A prisoner is taught to plead with the pigs and accept guilt for things he never did.
Speechless about their self-determination and fate, some who've been convicted remain enveloped in silence. Although a little too late, when some prisoners become acclimated to the life of incarceration, the astute and disciplined among them will invariably find their voice and become jailhouse lawyers.
Inside the California Department of Corrections and Rehabilitation's (CDCR) thirty-five prisons, such a lofty legal ambition is thwarted often by lockdowns and changes to daily operation of institutional programs caused by limited visibility from fog, officer training exercises, staff shortage, inmate-initiated work stoppages, riots, or scheduled institution cell searches. The Fourth Amendment's prohibition against unlawful search and seizure does not generally apply to prisoners, so there is no reasonable expectation of privacy in carceral environments. When prison operations run uninterrupted, there remains still the issue of access to the law library. Old films that depict a convict at study for hours, year after year, in a prison library stocked with updated legal material are a farce in the twenty-first century, as obsolete as a leather helmet in a football game. Prison overcrowding precludes inmates from regular use of libraries at many CDCR prisons. This is in direct violation of California law, which provides:
All inmates, regardless of their classification or housing status, shall be entitled to physical law library access that is sufficient to provide meaningful access to the courts. Inmates on PLU [(priority library use)] status may receive a minimum of 4 hours per calendar week of requested physical law library access, as resources are available, and shall be given higher priority to the law library resources. Inmates on GLU [(general library use)] status may receive a minimum of 2 hours per calendar week of requested physical law library access, as resources are available.
Two to four hours per calendar week simply is not enough time for even a skilled attorney to do legal work. Furthermore, the word “may” is not mandatory language, which means the hours noted are not guaranteed. Although the Sixth and Fourteenth Amendments accord litigants the right to an adequate defense or prosecution of a case, these amendments, as written, may as well be paper tigers because for the jailhouse lawyer--they have no teeth or claws. For this reason, prison sometimes exists as infinitely void of adjudicatory resources, with its libraries in eternal darkness.
It is no secret that most attorneys in California who have a state bar number are college educated. At the undergraduate level, they hold degrees in English, political science, philosophy, or some other discipline that may have prepared them for study of American jurisprudence. They are likely to also possess knowledge on subjects such as civics, psychology, and sociology. Unfortunately for many prisoners, they enter a fortress of doom, with little understanding of basics skills such as filling out a job application or writing a resume. If their criminal case makes its rounds through a state appellate and state supreme court, it is likely because they had a court-appointed attorney to represent them and hopefully enforce their rights under the law.
Many prisoners arrive in the CDCR bereft of a high school diploma or GED, defeated by the prosecution, left with the idea of an imagined abuse of language used to obscure facts in evidence that may not have existed and the effect of legalese on the jury. Many prisoners will admit that a prosecutor, however, is adept at convincing a layperson of a defendant's guilt based on insight to an event that this state agent never witnessed. It is done so often it requires no original thought
The precursor to such subterfuge requires the sequestered mind of a biased jury. In spite of the protection afforded a defendant-prisoner, bail in many cases is set at such an exorbitant amount, in violation of the Eighth Amendment, that it may as well serve as a ransom. After a futile attempt to make bail, a defendant-prisoner of color may learn that at trial, a skilled prosecutor's scepter of power lies in the hands of the entitled, dominant white culture, which is predisposed to exhibit racial bias toward defendants of color. Sometime after conviction, a defendant-prisoner might discover Batson v. Kentucky and People v. Wheeler.
[U]ntil Batson v. Kentucky, prosecutors were free to use peremptory challenges to preclude black venire members from serving as jurors ....
Batson v. Kentucky overruled Swain, certainly a step forward in the sense that it put jury selection in line with all the rest of Equal Protection doctrine: “Discrimination based upon race” is suspect, “and bears a heavy burden of justification.” As Batson held, the racially motivated use of peremptory challenges--even of a single juror--violated the Equal Protection Clause.
As defendant-prisoners learn this--and other criminal procedure cases--they might begin to see ways in which the system failed them and led them to prison. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), after the highest state court has had the opportunity to review a prisoner's appeal, they have one year to seek relief at the federal level. In that span of time a prisoner, who hopefully has a high school education, must learn the court system, case reports, Shepardizing, the applicable Penal Code, the Code of Civil Procedure, the Rules of Court, a new vocabulary, and more. It is a daunting task that a skilled lawyer, attorney general, and judge no longer face, especially inside a maximum-security prison where violence and lockdowns are the order of the day.
If a prisoner is resourceful or has connections, week-old copies of Daily Journal and Daily Appellate Reporter are available to him or her. LexisNexis is virtually nonexistent to California state prisoners, as is email, internet access, and unmonitored use of a telephone. The reality and the urgency of the one year deadline to file a federal petition for a writ of habeas corpus places many prisoners at a grave disadvantage since, in some cases, a life sentence is interpreted as death by incarceration. The provisions of the AEDPA--as most incarcerated people and people familiar with the law will agree--constitute one of the worst pieces of legislation from the Clinton tough-on-crime era of the 1990s. The AEDPA's time constraints alone forestall due process of law for both ignorant and scholarly prisoners. Failing to meet the time requirements to file a petition will time bar a prisoner from proceeding under the AEDPA, unless they can demonstrate some extraordinary circumstance that explains why the deadline was missed. And in the most explicit use of the phrase, “ignorance of the law is no excuse.”
How does a jailhouse lawyer learn the law under such alien conditions? Upon entering prison in 1998, after spending a little more than two years in county jail, I was given a mandatory copy of the California Code of Regulations, Title 15. I was expected to read it and understand it, so I did. But it was a cellmate of mine named Don in the county jail who started preparing me to become a jailhouse lawyer. He'd already served two prison terms and had worked as a clerk in one of the then-CDC prison law libraries.
Don was white and about twenty years my senior. He understood the legal and carceral skullduggery of politics that involved special interest groups such as crime victims, law enforcement agencies and their unions, prosecutors, and tough-on-crime advocates, and the racism that many of these groups espoused. He didn't run with the white boys, although it was expected in prison for everyone to unite along racial lines. As in everyday life on the outside, racism in prison creates a chasm between people. Navigating the 'color line’ is no small feat in lockup either.
Don was exceptionally different He was a jailhouse lawyer who had already seen the destructive nature of both prisoners and prison. He was different because his focus was on legal matters, and racial politics in prison to him had no place in the law library. Jailhouse lawyers seldom work in a solitary state. Rather, by the nature of our confinement, it is a study of law inextricably linked to each other and our convict predecessors who passed the proverbial torch on how to effectively file administrative appeals, and state petitions for writ of habeas corpus.
My knowledge of the law can easily be misunderstood as that of a self-taught jailhouse lawyer. On the surface, this is partly true. But much of my erudition on the subject of law is owed to those who pointed me in the right direction as I stumbled and made mistakes, men like Don.
Then there was Charlie, whom I met in administrative segregation--more commonly referred to as the jail's “hole”--after being sent there for ninety days because of what some deputies believed was an inflammatory composition written in my personal journals. Charlie claimed to have attended law school in another state and seemed to always know what he was talking about When he and I wound up at San Quentin's reception center before transferring to other prisons, we met in the legal library. I explained my desire to understand law.
“Charlie, I know I need to be in here learning, but I don't know where to start,” I explained.
“Stay right there,” Charlie said. “I'll be right back.”
He disappeared in the library for what seemed like an eternity as I stood there, anxious and clueless, a thirty-five-year-old doing his first prison term. When he returned, he handed me the book Legal Research. Charlie told me that this book would get me started on everything I needed to know.
That was my formal introduction to understanding the law. I was not allowed to check the book out, so I wrote down its information and took that with me for future reference. Three years and two prisons later, I ordered what by then was the seventh edition. I read the book cover to cover and did every library training exercise, such as learning how to distinguish the various state and federal case reporters, Shepardizing cases, and other research techniques. Of the 416 discursive books that I've read during my twenty-four-plus years of incarceration, Legal Research is book number 106. By then I'd been locked up about five years, and I still had a lot to learn about prison procedures, politics, and the dirty tricks played by guards and endorsed by other prison officials.
Other men who'd been locked up decades before my arrival to prison helped me to expand my legal knowledge. They were Larry, Vince, “Shogun,” Karluk, Wendell, Robert, Earnest, and Chung. Some like Karluk Mayweathers, a Muslim who was my neighbor at California State Prison, Solano, have published cases. He was intelligent and even drew for me the schematics for series and parallel circuits, years before I studied in the vocational trade to become an electrician. It was all about “each one teach one.”
Chung Kao, who I met and worked with at the inmate-run publication San Quentin News, had his own legal victories and helped to direct my written argument, strategy, and citations in my First Amendment complaint filed pursuant to 42 U.S.C. § 1983 for the case Sawyer v. McDonald.
I met Robert Mitchell in the law library at Folsom State Prison. He won his federal district court case, which raised the issue of whether the CDCR's race-based lockdowns were an unconstitutional practice. Although Mitchell's case did not go to trial, he received a favorable settlement
Larry Craig Green was a clerk in the library at California State Prison Solano when I arrived at the prison in 2000. During my early days of learning the law, he was kind enough to show me how to navigate through the library. He was one of the defendants convicted in the 1970s Zebra Murders case in San Francisco, California. His codefendant, the late J. C. Simon, was my last cellmate at the prison before I transferred.
Earnest Woods sued Solano's appeals coordinator Santos Cervantes in district court and won. By that time, I'd transferred from Solano to Folsom State Prison. I didn't know Woods, but when I read about his case in Prison Legal News and learned it was in the Court of Appeals for the Ninth Circuit, I filed an amicus curiae brief on his behalf because I was familiar with the delay, derail, distract, dissuade, and discourage tactics employed by that appeals coordinator. Cervantes used to frustrate me when I filed grievances, but he also made me a better litigator. He forced me to learn to not submit sloppy work to him that did not follow regulations, as he would frequently kick my work back to me for what I believed were petty technical flaws. Before I transferred from Solano, I wrote to him and thanked him for his “lessons.” Later, I met Woods at San Quentin, in the law library.
Wendell Bigelow alerted me about the case Woods v. Carey. For nearly a decade he and I walked the yard and discussed law, politics, religion, the economy, U.S. foreign policy, family, and life. He's a vegetarian and practicing Buddhist who always kept me centered. Today, he is a clerk in the law library at Solano, and he has written many legal articles in the prison's inmate publication Solano Vision.
Jonathan “Shogun” Williams provided me with direction and much needed advice over the years. I still have a well-worn book, The Federalist Papers, that he gave me to read.
I've had the good fortune to build my mind and limited understanding of the law and its principles on the erudition of past inmate legal scholars, each of whom used their unique methods to impart valuable lessons on research, writing, communication with court clerks, and more. Suffice it to say, there are skills that a prisoner must acquire in a carceral environment that may never arise in law school.
One example is priority library use (PLU) versus general library use (GLU) status in a prison legal library. There is a stark difference between what is codified in administrative law and the practice of prison administrators. Another inventive method I employed to learn the law was typing other prisoners' legal briefs. That was the next best thing to do, outside of having an intern or law clerk assignment As one might imagine though, some prison litigators will test a person's editing skills and their ability to interpret what the litigator attempts to articulate in writing. They'll also test patience. Because some prisoners are not accustomed to adhering to rules, they tend to make them up as they go. I imagine court clerks understand this salient point only too well. Author John Irwin put it another way:
Prisoners do not simply comply with the regimens imposed on them. They actively conspire to survive, to reduce their state of deprivation, to ease their moral condemnation, and to pursue their own self-interests. To the extent that their situation allows, they fully or partly cooperate with other prisoners and form their own social organizations with their own values and rules to achieve their goals.
It was Vince, whose last name I do not recall, that allowed me to read his prepublication copy of Irwin's book. He was my hero because he'd escaped from prison, not once but twice. Vince was his alias when he was on the lam. He could always be found in the law library, searching for another way out
In so-called free society, the downtrodden fight and are beaten by a horde of iniquitous “isms,” namely capitalism, racism, and sexism. After a time, some contemplate the path open to each of us, the proverbial fork in the road of temptation and right and wrong. When the latter fails and one is apprehended, this underdog who is often uneducated will lack the sophistication to fight an unknown battle where the code of the streets do not apply. This is where a surrogate defender takes up the cause in a courtroom. The battle ensues, but, as in life, defeat remains a constant and surrender to a sentence is all that's left Many may suppose fair sailing will transport the felon through time, but that's not so. Time away from society is supposed to be the punishment, cloaked under an authority that boasts of opportunity for reform and rehabilitation. This, however, is when more crime, inhumanity, and violations of one's person and rights have a criminogenic effect on so many prisoners.
Caged or confined and stripped of his freedom, the prisoner is forced to submit to an existence without the ability to exercise the basic capacities that define personhood in a liberal society. The inmate's movement is tightly controlled, sometimes by chains and shackles, and always by orders backed with the threat of force; his body is subject to invasive cavity searches on command; he is denied nearly all personal possessions; his routines of eating, sleeping, and bodily maintenance are minutely managed; he may communicate and interact with others only on limited terms strictly dictated by his jailers; and he is reduced to an identifying number, deprived of all that constitutes his individuality.
The jailhouse lawyer takes up a different fight, though. He or she picks up books, California Code of Regulations Title 15, the Penal Code, and the Constitution. That is a basic starting point Like a journalist, considered part of the Fourth Estate, or fourth political branch after the Executive, Legislative and Judicial, prisoners who litigate are a large part of a resistance that challenges power in the darkest part of injustice within America's democracy: its prisons.
The United States stands out from all nations on Earth for its reliance on caging human beings. In the last forty years, the U.S. incarcerated population exploded from about 500,000 to more than two million. The U.S. federal and state governments lock up more people and at higher rates than do any other governments in the world, and they do so today more than they did at any other period in U.S. history. Most people sentenced to prison in the United States today are from politically marginalized groups--poor, black, and brown.
Its doubtful that most prisoners aspire to become jailhouse lawyers. Rather, it is a necessity borne out of an injustice. Was it the arrest? The warrant? Evidence? Jury instructions? Sentence? How and where does a prisoner, who is likely ill-equipped, even begin?
[. . .]
... For these prison activists, asserting their constitutional rights constitutes both a pragmatic use of legal tools to win release or change carceral conditions and an empowering rhetorical demand for legal recognition. As George Jackson's appeal to “brainy types” suggests, lawyers and legal scholars can play an important role in helping to articulate and present the demands of people subjected to carceral punishment for strict adherence to the Constitution's abolitionist directives--even when they anticipate failure.
While I was glad to have won this case, the litigation was not solely about winning. It was part of a long line of activism behind prison walls.
Now in my twenty-fifth year of incarceration, I still read books and write. That will not change. In doing so, I know my words will invariably evoke negative responses from some prison officials who may view it as inflammatory. And if I am in prison any longer, I know aspersions and false stories about me may have me defending my rights again. That is the nature of being creative or speaking truth to power as an incarcerated journalist, writer, and ultimately-- having no other choice--jailhouse lawyer. As Charles Johnson once wrote: “Usually one of two things happens when a Negro fails to reflect this [stereo]type: Either he is considered an exception or he is 'out of his place.”’
In my own way, as a form of resistance, I am probably both.
Kevin D. Sawyer is an African American native of San Francisco, California, born in 1963.
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